 Source: HRO.org (info) · Freedom of association The Russian Ministry of Justice draft regulations, “On the Procedure for Maintaining a Register of Non-Profit Organisations Acting as Foreign Agents,” highlight certain factors likely to encourage corruption. The Ministry, clearly overstepping the bounds of the law, has appropriated powers for itself and introduced additional restrictive measures for NGOs that are not covered by the legislation. These are the findings contained in an independent anti-corruption expert analysis conducted by the Interregional Human Rights Association Agora. Agora is accredited as an independent expert and has been authorised by the Russian Ministry of Justice to conduct expert analyses to uncover potential factors likely to lead to corruption (Licence No. 77 of the 16 June 2009). The human rights activists say that several provisions contained in the draft regulations violate the Constitution, which guarantees the freedom of action of NGOs and which emphasises that “the rights and freedoms of individuals and citizens may only be restricted by the federal law insofar as they are necessary for the defence of the foundation of the constitutional system, the morality, health, rights and legal interests of other individuals, and for ensuring the defence and security of the state.” (Article 30, Article 13 and part 3 of Article 55 of the Constitution of the Russian Federation). For instance, the draft regulations state that “the grounds for rejecting the removal of a non-profit organisation from the register is the decision of the Ministry, taken in those instances where it is discovered that the application by a non-profit organisation to be removed from the register contains incomplete and/or false information” (paragraph 11). At the same time, the Justice Ministry has clearly-defined powers: maintaining the register of such NGOs, issuing warnings and taking the decision to suspend an organisation’s activities. Under the federal law, the Justice Ministry does not have the powers to take decisions on removing organisations from the register. According to the law, it is the NGO itself that determines whether or not it will be included in the register. Similarly, it is the organisation itself that decides whether or not to remove itself from the register. The Russian Ministry of Justice is only responsible for establishing this procedure. In the event that the NGO does not fulfil its obligations, the Justice Ministry can take coercive measures: either by issuing a warning or by suspending the activities of the NGO. The draft regulations state that “an application by a non-profit organisation to be removed from the register can be submitted to the Ministry no earlier than one calendar year from the day the activities of the non-commercial organisation, as a non-profit organisation acting as a foreign agent, ceased” (paragraph 16). This imposes an additional restriction on the NGO: the timeframe for submitting an application to be removed from the register. However, the federal law does not specify any restrictions on the timing for submitting an application. “In the first place, stipulating that a year has to pass before an application can be submitted has nothing to do with safeguarding the foundation of the constitutional system, the defence of the state, or the rights and freedoms of third parties,” reads the findings of the expert analysis. Secondly, a restriction of rights is only possible on the basis of the law, and the law does not specify such a restriction, and the Justice Ministry does not have the power to stipulate such restrictions on time frames. Thirdly, such a restriction violates the very spirit of the federal law. According to the draft law, the register is only supposed to contain information about those NGOs acting as foreign agents, but under the draft regulations it will not only contain information about NGOs who are acting as foreign agents, but also about those who have already ceased doing so. The law does not give the Justice Ministry the authority to keep a register of NGOs who have already stopped carrying out such functions. The human rights activists also highlight the dubious nature of the provision to make information about the founders of the NGOs publicly available on the Ministry of Justice website (paragraph 28). According to the federal law, citizens have the right to know the details of NGOs who are acting as foreign agents. That is why there is a proposal to post the information about the register on the official website. However, according to the federal law “On NGOs,” the founders of an NGO, after setting up the NGO, may well play no further role in any of the subsequent activities of the NGO. “In practice, there are some NGOs that were established over 10 years ago by people who today have no further involvement in the NGOs that they set up,” legal analysts write. “For example, those who set up a foundation are not responsible for the foundation’s obligations and play no part in the management of the foundation. The founders of a foundation may have nothing to do with the decisions taken by the NGO on how they receive funding or about how this money should be spent.” Taking this into account, the human rights activists ask what the legal purpose is of posting the personal details of the founders of NGOs, since all people really want to know is the information about the organisation itself, its address and its leader. All this information is already publicly available today on the Ministry of Justice website in the register of all registered NGOs. Lawyers emphasise that the federal law does not give the Justice Ministry the authority to make all the information contained in the register publicly available. The human rights activists highlight one further point in the draft regulations. The Justice Ministry intends to make information about organisations that have been removed from the register publicly available on the Internet. This means that the Justice Ministry will publish information about NGOs that are no longer acting as foreign agents (paragraph 28). “We don’t dispute that, in the case of NGOs, this information should be retained for a specific period of time,” say the human rights activists. “However, there is no public or state need for the maintenance of a register of “former” foreign agents. And the law does not give the Justice Ministry the authority to keep such a register. The final point that caught the attention of the Agora rights analysts was the form of the application to be included in the register. In particular, in section 5 of the document it states that an NGO is obliged to provide the passport details of private individuals who are the sources of their funding. Interestingly, according to the federal law “On Personal Data,” NGOs do not have the authority to collect such personal information from private individuals. Moreover, in many cases the NGOs have no objective or legal basis for getting hold of such information. In particular, the civil legislation allows private individuals to transfer money to legal entities into their accounts. The identification here is carried out by the bank. The bank does not include the passport details in the billing statement nor does it provide the legal entity with these details. In this case the only information the NGO receives is the amount of the payment, the date it was made, the purpose of the payment, and the sender’s name and address. And even the federal law on NGOs acting as foreign agents does not give the Justice Ministry the authority to impose additional obligations on non-profit organisations to collect information related to personal details. Thus, the human rights activists propose that the paragraphs which give the Justice Ministry powers that are not stipulated in the federal law be removed from the draft regulations. The full findings of the independent anti-corruption expert analysis of the Russian Ministry of Justice draft regulations “On the Procedure for Maintaining a Register of Non-Profit Organisations Acting as Foreign Agents” are available at: http://openinform.ru/fs/j_photos/openinform_386.pdf (in Russian) |
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